2112145 (MIGRATION) - [2024] ARTA 159

2112145 (MIGRATION) [2024] ARTA 159 (18 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2112145

Tribunal:General Member J Clarke
Place:Melbourne
Date: 18 November 2024
Decision:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 18 November 2024 at 10:20am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – members of the family unit – cousins – customary adoption – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, ss 5(1), 348
Migration Act 1958, ss 5(1), 65, 348, 351
Migration Regulations 1994, Schedule 2, cls 114.211, 115.211, 116.211, 116.311; rr 1.03, 1.15
Social Security Act 1991
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 1 September 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Other Family (Migrant) (Class BO) Subclass 116 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 15 October 2018, the visa applicants applied for the visas. The first-listed visa applicant, [Applicant 1], is the primary visa applicant. It is claimed that each of the six secondary visa applicants is a member of the family unit of [Applicant 1]. At the time of this decision, [Applicant 1] is [year] years of age, the second-listed visa applicant, [Applicant 2], is [age] years of age and the remaining secondary visa applicants range in age from [age range].
The review applicant and sponsor, [named], is an Australian citizen. At the time of this decision, [the sponsor] is [age] years of age. It is claimed that [Ms A] is the relative in Australia who requires the care. A carer visa assessment certificate concerning [Ms A], dated 1 May 2018, is on the Department’s file. At the time of this decision, [Ms A] is [age] years of age.
At the time the visa applicants applied for the visas, Class BO contained three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations).
In this case, the visa applicants are seeking to satisfy the criteria for the grant of Subclass 116 visas. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.211 and the secondary criteria include cl 116.311.
Clause 116.211 is a time of application criterion which provides:
(1) The applicant claims to be a carer of an Australian relative of the applicant.
(2) In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The term ‘carer’ is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this decision.
Clause 116.311 is a time of application criterion which provides: ‘[t]he applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 116.21’.
The review applicant provided the Tribunal with a copy of the delegate’s refusal decision of 1 September 2021. The delegate found that [Applicant 1] and [Ms A] are cousins. Accordingly, the delegate found that [Applicant 1] did not meet cl 116.211—which requires that, at the time of application, the applicant claims to be the carer of an Australian relative—because a cousin is not one of the familial relationships recognised in the definition of ‘relative’ in reg 1.03. The delegate also refused to grant visas to the secondary visa applicants on the basis that they each did not satisfy cl 116.311, which requires them each to be a member of the family unit of a person who satisfies the primary criteria in Subdivision 116.21.
On 10 September 2021, the review applicant applied to the Tribunal for review of the delegate’s refusal decision. The review applicant was represented in relation to the review.
On 4 October 2024, the review applicant appeared, in person, before the Tribunal to give evidence and present arguments. [Applicant 1] was available to give her oral evidence by telephone from overseas but in view of the other evidence before the Tribunal, the Tribunal did not consider it to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The representative attended the hearing. [Ms A] and her carer under the National Disability Insurance Scheme attended the hearing but did not give oral evidence.
On 11 October 2024, the Tribunal wrote to the review applicant, by way of her representative, because the Tribunal had noted that, in an email sent to the Department by the review applicant’s former representative on 17 May 2021, the then representative had stated, amongst other things, that the review applicant had ‘been caring for [Ms A] her entire life’. And that, ‘[a]lthough not her biological daughter, [Ms A] is [the sponsor’s] daughter by customary adoption’. The Tribunal requested clarification about:
(1) whether the claim of customary adoption was being made such that [Applicant 1] and [Ms A] are sisters as well as cousins; or
(2) whether such a claim is not being made and the Tribunal should proceed with its decision.
The Tribunal requested a response, in writing, by 25 October 2024.
On 13 October 2024, the AAT was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’. ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
On 25 October 2024, the representative wrote to the Tribunal in response to the Tribunal’s correspondence of 11 October 2024. Key amongst the content of this letter was that the representative had been instructed that ‘[the sponsor] is not making a claim that [Applicant 1] and [Ms A] are sisters’ and that ‘[the sponsor] consents for the Tribunal to proceed with its decision, including its consideration of her request to refer the matter to the Minister for consideration of his power to intervene’.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The key issue for determination is whether, at the time of application on 15 October 2018, [Applicant 1] met cl 116.211 of Schedule 2 to the Regulations.
As has been explained, cl 116.211(1) requires that, at the time of application on 15 October 2018, the primary visa applicant claims to be the carer of an Australian relative of the applicant.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘close relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The application for the visas was made on the basis that [Applicant 1] is the carer of [Ms A]. A number of documents submitted to the Department stated or suggested that [Applicant 1] and [Ms A] are cousins. For example, in the completed Form 47OF—Application for migration to Australia by other family members, [Applicant 1] declared, at question 65, that [Ms A] was her cousin and in the completed Form 40—sponsorship for migration to Australia, the review applicant declared, at question 42, that her ‘dependent niece with disability’ was living with her. In this review, the review applicant submitted a ‘to whom it may concern’ letter, dated 12 December 2023, from her named doctor which, amongst other things, stated that the review applicant was ‘sponsoring her relatives to assist her in her caring duties for her niece [Ms A]’ (emphasis added).
At the hearing, when asked, the review applicant gave oral evidence that [Applicant 1] is her biological daughter. She said that she was willing to undertake DNA evidence to establish this. She told the Tribunal that [Applicant 1’s] father had taken [Applicant 1] away from her and had told her that she was dead and for this reason, and because she was told not to include [Applicant 1] in her own papers for migration to Australia, she had not included her. She said that [Ms A] is her sister’s daughter. The Tribunal found the review applicant to be very credible and accepts her oral evidence about these matters.
The review applicant acknowledged that the primary visa applicant are cousins. The Tribunal explained that a cousin is not one of the familial relationships recognised in the definition of ‘relative’ in reg 1.03.
From all the evidence before it, the Tribunal finds that, at the time of application, while [Applicant 1] claimed to be the carer of an Australian relative (here, [Ms A]), she does not satisfy the requirements of cl 116.211.
CONCLUSION
For the reasons above, [Applicant 1] does not meet the criteria for a Subclass 116 visa.
In relation to the secondary visa applicants, the Tribunal finds that, as the primary visa applicant ([Applicant 1]) does not meet cl 116.211 and accordingly, does not meet the criteria for a Subclass 116 visa, the secondary visa applicants each cannot meet the criteria for a Subclass 116 visa as a member of the family unit of a person who has satisfied the primary criteria. Further, no claims have been made, and no evidence provided, that any of the secondary visa applicants meet the primary criteria for a Subclass 116 visa.
For these reasons, each visa applicant does not meet the criteria for a Subclass 116 visa.
There have been no claims advanced in respect of the other visa subclasses in Class BO (Subclass 114 or Subclass 115).
Notwithstanding, the Tribunal finds that not one of the visa applicants is entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa because the evidence before the Tribunal is that [Applicant 1]—the eldest of the visa applicants—was born in the year [specified]. Accordingly, she is not old enough to be granted an age pension under the Social Security Act 1991. As such, each visa applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations. For these reasons, each visa applicant does not meet the criteria for a Subclass 114 visa.
Further, there is no claim or evidence before the Tribunal to suggest that each or any visa applicant is entitled to the grant of a Subclass 115 (Remaining Relative) visa. ‘Remaining relative’ is defined in reg 1.15 of the Regulations. In the absence of claims and evidence, the Tribunal is not satisfied that there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is not met. As such, each visa applicant is not a ‘remaining relative’ and therefore unable to meet cl 115.211. For these reasons, each visa applicant does not meet the criteria for a Subclass 115 visa.
CONSIDERATION OF REQUEST FOR REFERRAL TO THE MINISTER FOR INTERVENTION
At the hearing, the review applicant formally requested the Tribunal to refer the matter to the Minister for his consideration.
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.
In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).
The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.
In this case, the Tribunal considers that the facts as claimed by the review applicant seem to best be described as:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
It could also be that ‘the application of relevant legislation leads to … unreasonable results in a particular case’.
At the hearing, the review applicant confirmed that both she and [Ms A] were Australian citizens.
The Tribunal notes the detailed written submissions outlined in the former representative’s email to the Department dated 17 May 2021.
In the representative’s letter of 25 October 2024 filed in this review it was relevantly submitted:
We confirm our instructions that when [Ms A’s] biological parents passed away in 2006 in Somalia, [the sponsor] was at the refugee camp in Kenya. [The sponsor] agreed to care for [Ms A] as there was no other person to care for her and the only way to do so was for her [to be] sent to Kenya. Upon her arrival in Kenya, [the sponsor] took all necessary steps to register [Ms A] with the UNHCR Kenya as her daughter in the sense she had sole custody of her as both parents had passed away.
We confirm our instructions that though how [Ms A] has been in [the sponsor’s] care would be considered customary adoption, however, there is no other evidence that can be provided to this effect apart from the testimony that [Ms A] has been in care since she was 7 years old, and she has been the mother figure in her life since then. The manner in which [Ms A] came into [the sponsor’s] care is not an uncommon practice in Islamic countries like Somalia where immediate family members assume responsibility for orphan relatives without the need to go through the procedure as directed by the law. Despite abolishing Islamic courts and repudiating tribal structure and customary law after the Revolution of 1969 and the passage of the Civil Code, the majority of the society continues to adhere to the customary way for the sake of protection, maintenance and education.
It is conceded that the Migration Regulation does not automatically recognise customary adoptions from other countries, however, due to the nature of the application under review, the circumstance of [the sponsor] and [Ms A] is one of the exceptional cases with compelling humanitarian reasons for the Minister to intervene under s 351 of the Migration Act 1958. …
We confirm our instructions that since turning 18, [the sponsor] was made the guardian of [Ms A] and that has not been revoked.
At the hearing, the review applicant told the Tribunal that she is like a mother to [Ms A] as she has cared for her ‘since she was a baby’[1] and that she viewed [Ms A] as her daughter. She told the Tribunal that [Ms A] cannot cross the road safely by herself and that if someone bullied [Ms A], [Ms A] would not be able to confront them or defend herself.
[1] It is possible that there was some slippage in the interpretation in this instance because later in the hearing she gave oral evidence that [Ms A] had been in her care since [Ms A] was 7 years of age.
She said that, when she dies, the only person she trusts to care for [Ms A] is her daughter [Applicant 1]. She said that she would leave her property, and she referred to her mobile phone, to both [Ms A] and [Applicant 1]. She said that, after she had learned that [Applicant 1] was alive, she had visited her twice and had taken [Ms A] with her. She said that she had observed the two interact and that [Applicant 1] cared for [Ms A] like she was her daughter.
She said that [Ms A] needed someone other than her (the review applicant). She told the Tribunal that she had had a number of bad experiences when something had happened to her (the review applicant), [Ms A] did not receive the care she requires.
She recounted the time when she (the review applicant) had needed to go to hospital in the middle of the night and had had no one to leave [Ms A] with so [Ms A] had attended the hospital with her. She said that, when she had been at the hospital and was being treated, she had been very worried as to where [Ms A] was and proceeded to explain how [Ms A] had not been where the staff had thought she was. She said that because [Ms A] cannot speak, [Ms A] had come close to being treated herself as she had not been able to tell hospital staff that she was not a patient. She also told the Tribunal about the time she (the review applicant) had fallen down some steps and had broken a number of ribs and that others had wanted to call an ambulance but that she had worried because [Ms A] was at school at the time.
She concluded by saying that she worried for [Ms A], not herself. She said that while she felt that she needed [Applicant 1] and her family to help her, it was really [Ms A] who needed them because due to the review applicant’s age and health conditions, it was difficult for her to care for [Ms A]. She said that she hoped the compassionate circumstances in this case would be recognised.
The Tribunal found the review applicant to be very credible and accepts her oral evidence about these matters.
The Tribunal also notes, accepts and gives weight to the medical evidence that was submitted in this review, namely a signed ‘to whom it may concern’ letter, dated 12 December 2023, from the review applicant’s general practitioner which outlined the review applicant’s medical history and current conditions—‘worsening osteoarthritis in her knees, feet and lumbar spine’—as well as her list of medications. The letter stated, ‘[The sponsor] is the primary carer of her niece [Ms A] who has Down’s syndrome and requires constant supervision for her safety and every day care, including showering, shopping, and meal preparation’. The letter stated that the review applicant ‘is finding heavy domestic duties too hard due to her osteoarthritis’ and that ‘[t]his is likely to worsen over time’. The letter also stated, ‘[t]here are no other family members available to give respite to [the sponsor] and she is vulnerable to being exploited from her NDIS team due to language barriers and lack of other supports’.
Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Date(s) of hearing: 4 October 2024
Representative for the Applicant: Mr Roger Yeboah
ATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.